AUSTRALIA: Australian Government Revised Labour Market Testing in the 457 Program
In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.
The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.
An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.
The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:
- World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
- Free trade agreement commitments
Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.
In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.
Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.